Citation Nr: 1126337	
Decision Date: 07/13/11    Archive Date: 07/19/11

DOCKET NO.  10-31 301	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). 


ATTORNEY FOR THE BOARD

W. Yates, Counsel


INTRODUCTION

The Veteran served on active duty from June 1988 to July 1988, on inactive duty for training (INACDUTRA) from July 2002 to November 2002, and on active guard reserve (AGR) from September 2004 to September 2007.  The appellant is the Veteran's spouse, and she is seeking a transfer of the Veteran's educational assistance benefits under the Post-9/11 GI Bill.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.


FINDING OF FACT

The Veteran served on active duty from June 1988 to July 1988, on INACDUTRA from July 2002 to November 2002, and on AGR in the Army National Guard from September 2004 to September 2007 under the authority of 32 U.S.C. orders.  


CONCLUSION OF LAW

The requirements for eligibility for educational assistance under the Post-9/11 GI Bill have not been met. 38 U.S.C.A. § 3311 (West 2002 & Supp. 2010); 38 C.F.R. §§ 21.9505, 21.9520, 21.9570 (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board finds that the statutory and regulatory notice and duty to assist provisions are not applicable in this case because the issue presented is solely one of statutory interpretation.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  The Veterans Claims Assistant Act of 2000 has no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002); Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  Thus, the Board finds that any deficiency in VA's notice or development action is harmless error.

In September 2009, the appellant filed a claim seeking a transfer of the Veteran's educational benefits under the Post-9/11 GI Bill.  See generally 38 U.S.C.A. §§ 3301-24 (West Supp. 2010); 38 C.F.R. § 21.9570.

In August 2010, VA contacted the Department of Defense (DoD) to confirm the nature of the Veteran's military service after September 10, 2001.  DoD's response indicated that the Veteran served on active duty from June 1988 to July 1988, on INACDUTRA from July 2002 to November 2002, and on AGR in the Army National Guard from September 2004 to September 2007 under the authority of 32 U.S.C. orders.  

The Post-9/11 GI Bill was enacted under Pub.L. 110-252, Title V, § 5003(c), June 30, 2008, 122 Stat. 2375.  See generally 38 U.S.C.A. §§ 3301-24 (West Supp. 2010); 38 C.F.R. § 21.9520.

In implementing this new law, VA promulgated 38 C.F.R. § 21.9520, which contains the minimum service requirements for eligibility for educational assistance under the Post-9/11 GI Bill.  Generally, to be eligible for educational assistance benefits under the Post-9/11 GI Bill, an individual must have served on active duty for a minimum of 90 days after September 10, 2001.  See 38 C.F.R. § 21.9520.  The service requirement is also met by an individual who serves a minimum of 30 continuous days of active duty, and after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability.  See 38 C.F.R. § 21.9520 (b).

Important for this decision, 38 C.F.R. § 21.9505 defines active duty as full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C. 688, 12301(a) 12301(d), 12301(g), 12302, 12304.  The regulation specifically excludes from active duty full-time National Guard Duty performed under 32 U.S.C. orders.  See 38 C.F.R. § 21.9505(1).

In this case, the Veteran's military service does not meet the service requirements for eligibility for educational assistance under 38 U.S.C. Chapter 33 benefits.  Specifically, the Veteran does not have qualifying active duty service as his only military service after September 10, 2001, consisted of INACDUTRA from July 2002 to November 2002, and AGR service in the Army National Guard, from September 2004 to September 2007, which was under the authority of 32 U.S.C. orders.  The INACDUTRA period of service did not arise from a call or order to active duty under 10 U.S.C. 688, 12301(a) 12301(d), 12301(g), 12302, 12304; and the AGR service is specifically excluded as active duty service under 38 C.F.R. § 21.9505(1).  Accordingly, the Veteran is not shown to have qualifying active duty service under 38 C.F.R. § 21.9505.  

Pursuant to 38 C.F.R. § 21.9570, the Veteran may only transfer the amount of entitlement he has available at the time of the transfer.  As the Veteran is not shown to have any entitlement to educational assistance under the Post-9/11 GI Bill, entitlement to a transfer of benefits under the Post-9/11 GI Bill is not warranted.



ORDER

Educational assistance under the Post-9/11 GI Bill is denied.


____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs